On motion to dismiss indictments and to enter judgment of acquittal.
This is a motion to strike two outstanding indictments and to have a judgment of acquittal entered on behalf of the defendant, Frank Romeo. The motion is made pursuant to R.R. 3:5-5(a), which supersedes the former practice of asserting by written plea the defense of autrefois acquit. See State v. Boening , 63 N.J. Super. 588 (App. Div. 1960).
The indictments were returned on February 14, 1961. Indictment No. 1042 charges Frank Romeo, together with others, with conspiracy to violate the gambling laws in violation of N.J.S. 2A:98-1. Indictment No. 1045 charges him with what is commonly referred to as bookmaking in violation of N.J.S. 2A:112-3. No motions were addressed by the defendant attacking the validity of the indictments, and the court accepted a plea of not guilty to both indictments.
The matter came on for trial on February 26, 1962, before this court. A jury was selected after a proper voir dire , and said jury was sworn. At the time of the impanelling each juror was asked by both the assistant prosecutor
and defense counsel whether he or she was acquainted with the defendant, Frank Romeo. None acknowledged any such acquaintance.
Successive opening statements were made by the assistant prosecutor and by defense counsel. Testimony was then taken from the first two witnesses called by the State. Their entire testimony, including all cross-examination, was completed. The court then recessed for the day, with the usual instructions to the jury admonishing them not to speak to anyone about the trial.
On February 27, 1962, on what was supposed to have been the second day of trial and a continuation of the State's case, juror No. 1 advised the court that upon reaching home after the first day of trial, he had inquired of his wife whether or not he in fact knew Frank Romeo. Later that same evening he telephoned his brother-in-law and asked the same question. It appears that the juror himself did not know the defendant personally, but his brother-in-law was acquainted with the defendant and informed the juror that they were all members of a common local social organization.
The court then advised both the State and the defense counsel of its conversation with the juror in court, to the exclusion of the remainder of the jurors. It then inquired whether or not both parties would consent to the continuance of the trial with 11 jurors if it became necessary to remove juror No. 1 from further participation in the trial. The defense counsel agreed to stipulate in writing to less than 12 jurors under R.R. 3:7-1(b), but the assistant prosecutor refused.
Juror No. 1 was then interrogated in open court by the court, assistant prosecutor and defense counsel. At the termination of this supplemental voir dire , the court reserved decision. The court then inquired of counsel whether there were to be any motions made as a result of the testimony given by juror No. 1. No motions were made, but the prosecutor said:
Mr. Ford: "If your Honor please, based upon the facts as they have been adduced from this particular witness, I feel that the Court should within its discretion ...